President Obama’s nomination of Solicitor General Elena Kagan to replace retiring Supreme Court Justice John Paul Stevens was met with criticism from the left and the right Monday as liberals continued to raise questions about her views on executive power and conservative bloggers honed in on her lack of experience as a judge.

Original DVD coverSalon blogger Glenn Greenwald has been Kagan’s most outspoken liberal opponent. Nearly a month ago, Greenwald laid out “The case against Elana Kagan,” and he has been hammering her ever since, largely over her views on executive power.

…snip…

Meanwhile, at The American Prospect, Adam Serwer suggested that a 2005 letter co-signed by Kagan to Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) criticizing an amendment to restrict the ability of courts to review practices at Guantanamo Bay may signal more progressive views on executive authority.

Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more. In addition to zero judicial experience, she has only a few years of real-world legal experience. Further, notwithstanding all her years in academia, she has only a scant record of legal scholarship. Kagan flunks her own “threshold” test of the minimal qualifications needed for a Supreme Court nominee.

But Kagan’s record suggests that she probably falls to the right of Stevens — arguably the most liberal current justice — at least on the presidential-power and war-on-terror issues that may be more important than any others that come before the justices in our times.

…snip…

as Solicitor General, she has forcefully championed Obama’s continuation of Bush’s long-term detention without trial of Guantanamo prisoners; of Bush’s detention of prisoners in Afghanistan with no judicial review at all; and of Bush’s use of the “state secrets” doctrine to fend off lawsuits over Bush’s warrantless wiretapping program. Kagan has also apparently helped shape Obama’s plan to use congressionally revamped military commissions to try some terrorism suspects and other broad claims of presidential power.

Since Kagan’s nomination was imminent, I was struck by certain similarities between the President and his nominee. They are both intelligent, of course, but they also share an ability to navigate among factions without offending anyone.

May 10 (Bloomberg) — Senate Republicans said a lack of litigation experience may be one of the toughest issues confronting Supreme Court nominee Elena Kagan, as Democrats predicted she will win bipartisan support and take her place on the nation’s highest court.

Senate Majority Leader Mitch McConnell said Republicans want to ensure that Kagan, now the government’s top Supreme Court lawyer, will not be a “rubber stamp” for the administration and won’t have a “preconceived idea of who should win.”

…snip…

Senate Judiciary Committee Chairman Patrick Leahy called Kagan a “superb nominee” and said one of her strengths is her background outside the “judicial monastery,” including a stint as the dean of Harvard Law School.

“She will be confirmed,” Leahy, a Vermont Democrat who will preside over Kagan’s Senate hearings this summer, told reporters. He noted that Chief Justices William H. Rehnquist and Earl Warren also hadn’t been judges before being named to the court.

President Barack Obama today selected Kagan, the first female U.S. solicitor general, to succeed retiring Justice John Paul Stevens. By doing so, he put before the Senate a candidate who just a year ago went through a lengthy confirmation process before the Judiciary panel, and then won full Senate confirmation on a 61-31 vote.

…snip…

“As I made clear when I supported her confirmation as solicitor general, a temporary political appointment is far different than a lifetime appointment to the Supreme Court,” [Jon] Kyl [of Arizona] said in a statement.

Kyl told Kagan at her confirmation hearing last year that her lack of extensive litigation experience may harm her ability to be the government’s top Supreme Court advocate.

…snip…

Asked whether Kagan’s lack of extensive litigation experience was a legitimate issue for Republicans to raise, Leahy said, “It’s never bothered them confirming Republican nominees who haven’t had litigation experience.”

Kagan, 50, a New York native and former Clinton administration official, also will face attacks from Republicans for opposing military recruiting on the Harvard campus because of the services’ gay ban.

Still, Democrats and independents hold 59 seats in the Senate and need help from only one Republican to ensure a floor vote on the nomination. Justice Sonia Sotomayor last year won confirmation 68-31, with nine Republicans supporting her.

Senator Arlen Specter, a Pennsylvania Democrat who, as a Republican, opposed Kagan’s nomination to be solicitor general because he said she wasn’t forthcoming on some matters, today praised the choice and said he pushed Obama to pick someone outside the court system.

…snip…

Senator Lindsey Graham, a South Carolina Republican who serves on the judiciary panel, said in a statement today that Kagan has a “strong academic background” and that he has been “generally pleased with her job performance as solicitor general,” particularly on terrorism issues.

Leahy dismissed the controversy over Harvard’s restrictions on military recruiters, noting that armed services recruiters were still able to meet with students blocks from the campus.

“She’s being nominated for the Supreme Court, not the secretary of defense,” he said.

Leahy said he will meet with Kagan this week, and then confer with Senator Jeff Sessions of Alabama, the top Judiciary Committee Republican, before setting a date for Kagan’s confirmation hearings.

Me? I don’t know a lot about Elena Kagan, but I think it will be pretty cool to have three women on the Supreme Court at one time.

20 responses to “Re-order in the Court?”

That said, I’m not the least bit surprised that Obama picked Kagan. I’m not the least bit upset, either. I guess that means I’m not that far Left. All the real Leftists I know online are mad as wet hens over the nomination.

i went shopping this afternoon. one reason was so that i could avoid all the hand-wringing over at the big orange. there is no perfect candidate for any political or judicial opening (at least, not one that can get confirmed in this political atmosphere). people need to learn to live with that fact.

not sure. i picture scalia playing one of those old squeezy hand organs. alito would play the triangle (he’d hit it at all the wrong times, and everyone else would give his the stinkeye for being such a wussy loser). roberts wouldn’t play any instrument. he’d just have his tighty whities creeping up his butt as his cheeks pucker at just the thought of music.

The good: Since more than half the US population is female, we need more female balance in the court so I like that we would have 3 Supremes.

The bad: You just know the repugs would shred anyone who is nominated.

The ugly: I will speculate the congress critters would go through at least 2 nominees, rejecting them & then settling on the 3rd. Obama needed 2 nominees to throw under the bus.
Just as Gramps McCan’t threatened there would be no cooperation from the right side of the aisle….I think they feel they have a black eye from the health care reform issue, and want to lash out to flex some GOP muscle. (Ewww)
So I think the first nominee may be the victim of GOP angst. They would chew up & spit out whomever Obama nominated?
They are in a mood, and this is their tantrum.

My suggestion for his best strategy?
Just keep throwing extreme left wing nominees at them until one sticks. Eventually, they will have to confirm someone!

I don’t know enough about Kagan to have an opinion either way…. I would be more comfortable if she had written some papers to know where she stands in an historic manner.

We don’t want no wildcard judge on the supreme court.

I hate to say it, but I hope Obama has a long list of potential candidates, because Ginsburg is not in the best of health. (Although I love her as a supreme, she is solid & sensible).

However, if confirmed by the Senate, Kagan would be the first Supreme Court justice without prior judicial experience since 1971, when President Richard Nixon nominated William Rehnquist and Lewis Powell to the bench.

But appointing non-judges to the high court once was fairly common. Of the 111 justices in the nation’s history, 40 came from non-judicial backgrounds, according to Findlaw. com.

i think she’ll be confirmed. the rethugs might draw it out for a while and beat their saggy chests, but they’ll confirm her. they’re too afraid of someone who might be more liberal, so they won’t push their luck. all the dems will vote for her, so they only need one rethug. voinivich and gregg are retiring. one of them will vote for her and probably a few others as well.

Justice Ruth looks pretty hot on that cover. Now that the court will be all Catholics and Jews should get the conspiracy types puffed up. With the balace shifting so much, we can only hope someday Roberts quits for personal reasons so Obama can name the ultimate Chief Justice, the one all America has been waiting years for: Judge Judy! Just think of those life changing rulings peppered with all those Yiddish words. And best of all, when the court sessions open and the guy calls out “oy veh, oy vey, oy veh this court is in session”.

If there was ever a greater need for discarding the useless saws of “right” and “left” politics, it’s most obvious when it comes to evaluating nominees to the Supreme Court.

These people must be moral and ethical Americans first and last; fuck left and right. Their characters and decisions must reveal the highest understanding of a sense of fairness, justice, and regard for truth. To hell with media and politics.

Nice job on the poster dames. I considered that same point, he’s appointed 2 women which is great. Kagan is not the caliber of left I wanted, far from it. She likes to mix it up with Roberts though, which I like. She is also all of 50 years old, which I like equally well. Obama isn’t the hard bitten liberal I somehow hoped he’d be either though so I guess this nomination is consistent. And after all if Mitch McChinless doesn’t like her, how bad can she be ?

i like melissa lacewell harris’s argument to defend against the rethugs when it comes to the recruiters. the law said that public funds should not be used to promote any organization that excludes anyone based on race, religion, or sexual preference. the recruiters clearly do, so kagan was following the law. surely, the rethugs, who claim to love the rule of law so dearly, cannot fault her for following the law to the letter!